Potter v. Sturges, 12 N.C. 79, 1 Dev. 79 (1826)

Dec. 1826 · Supreme Court of North Carolina

12 N.C. 79, 1 Dev. 79

Lyman Potter v. William Sturges.

From Stokes.

Where an agent collects money, no action accrues to the principal until a demand.

Assumpsit on an accountable receipt given by the Defendant, a constable, for two notes, expressing that the notes were received from the Plaintiff/or collection.

On the trial before Daniex, Judge, a verdict was taken for the Plaintiff, subject to the opinion of the Court, whether, upon the following facts, the Plaintiff had any cause of action.

The Plaintiff resided in the State of Massachusetts, and had no agent residing in this State. The Defendant collected the amount of one of the notes, and might have collected the otherno demand was made, before the Commencement of the action.

The presiding Judge was of opinion, that to sustain the action, it was necessary, that a previous demand should be shewn, or that at least there should have been a known agent of tlje Plaintiff within this State, authorized to receive the money, and directed the verdict to be set aside and a nonsuit entered, whereupon the Plaintiff appealed.

In this Court, no counsel appeared, and the opinion, of the Court was delivered by

Tayxor, Chief-Justice :

Both the law and justice of this case have been in my opinion, duly administered, for the Defendant had done no act to put him in the wrong. He was not bound to leave the State to go in pursuit of the Plaintiff', and the latter had no agent here, to whom the payment could be made. If a man receive money to a special purpose, as to account or merchandize, it cannot be demanded of him as a duty, till he has neglected or refused to apply it according to the trust, under which lie received it, and the declaration must shew a misapplication, or bread) of trust; and though a verdict for the Plaintiff will aid such a declaration, and it will be presumed afterwards, that the Defendant refused to account, yet here the objection was taken at the trial, and the point reserved.— The law distinctly recognizes the principle, that if goods are consigned to a factor for sale on commission, that a contract arises, that he will account for such as are sold, pay over the proceeds, and re-deliver the residue unsold, whenever a demand is made. Nor will an action lie against him for not accounting, till after a demand made of an account; and from that period only, will the statute of limitations begin to run against the Plaintiff.

If this is a just rule as applicable to persons living under the same government; it is more so, where the Plaintiff has left the country, and put it out of the Defendants power to pay the money. (1 Salk. 9—1 Taunton, 571.) I therefore think, a non suit ought to be entered up.

Judgment ' apeirmer.